Silence is Golden: Your Right to Remain Silent

I recently posted a blog about the importance of exercising your constitutional right to remain silent when questioned by police or other law enforcement agents. Most people seem to feel awkward in not responding to questions and, when they do speak to police, they often incriminate themselves even when they are innocent.

Today, the United States Supreme Court issued an opinion which holds that a person who is not in custody and who did not receive Miranda warnings, who answered a police officer’s questions regarding a murder and then became silent when further questioned about whether ballistics testing would match his shotgun to shell casings found at the scene of the murder, was unable to prevent the prosecutor’s use of his silence in the case against him.

The case is called Salinas v. Texas. The opinion was written by Justice Alito.

Salinas argued that the prosecution’s use of his silence violated his Fifth Amendment right against self-incrimination.

The Supreme Court rejected the argument, stating that a witness, who desires the protection of the Fifth Amendment privilege to remain silent, must claim that right at the time he or she relies upon it. In other words, a witness must invoke or state that he or she declines to answer the question or questions based on his/her Fifth Amendment right.

Many people who are arrested and charged with a crime complain that they were not read their Miranda rights. While the police should immediately give Miranda warnings to a person who is arrested, the courts do not view the failure to read Miranda rights as problematic unless the person is questioned and gives answers without having been given Miranda rights first. So, where a person chooses to stand mute rather than to give an answer that could be incriminating, but does not invoke their Fifth Amendment privilege, their silence can be used against them in a trial. Stated another way, a defendant (a person charged with a crime) does not invoke their Fifth Amendment privilege by remaining silent. They should say, “I decline to answer questions based upon my Fifth Amendment Rights”, or words to that effect.

Justice Breyer filed a dissenting opinion in the case, which was joined by Justices Ginsburg, Sotomayor and Kagan.

The dissent had it right. The holding of the Court is incredibly unfair and is another example of a Supreme Court decision making a mockery of the presumption of innocence. Simply put, the validity of our constitutional rights should not depend on verbal invocation.

Most people, including lawyers, are not knowledgeable about their constitutional rights, but the rights and protections normally exist whether the person is aware of them or not. Not in today’s case. And remember, all federal courts and most states are bound to follow this decision by the United States Supreme Court. Only states that grant their citizens greater constitutional rights, based on their individual state constitution, may give their citizens additional protections – beyond what the Supreme Court grants – in state court criminal proceedings.

We hope that this blog has been helpful to you and given you some of the basics in understanding your Fifth Amendment rights. Our law firm is a criminal defense law firm and if we can be of assistance to you, please don’t hesitate to call us 305 670-9919. You may obtain more information at our website: www.jeffweiner.com.

By Jeffrey S. Weiner | Posted on June 18, 2013

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